In Defense of Marriage For Everyone: 1,138-Plus Reasons to Get Married in 2009

By Cindy Hill

Besides the allure of gift registries, friends toasting you and your beloved, shopping for your dream gown, plus the excuse to page through Modern Bride magazine while tanning – why get married?

Turns out there are officially well over a thousand very beneficial reasons. According to a 2004 report released by the U.S. Government Accountability Office (GAO), there are at least 1,138 statutory provisions in which marital status factors in the determination of federal privileges, rights, and benefits. And states can offer their own bundle of marital benefits. As expressed in Hernandez v. Robles New York’s highest court, for example, in 2006 identified “316 such benefits in New York law,” noting as most important: “Married people receive significant tax advantages, rights in probate and intestacy proceedings [(when someone dies without a will)], rights to support from their spouses both during the marriage and after it is dissolved, and rights to be treated as family members in obtaining insurance coverage and making health care decisions. Beyond this, they receive the symbolic benefit, or moral satisfaction, of seeing their relationship recognized by the State.”

But the hitch is in the getting hitched – a right granted to opposite-gender couples only in all but two out of the 50 states (and civil unions only available in three states). Two things need to happen to bring the full multitude of marital blessings to same-sex couples in Vermont. First, Vermont must pass a same-sex marriage law to supplant the present civil-union scheme. And second, the Obama administration and Congress need to repeal the federal Defense of Marriage Act (DOMA), which presently precludes same-sex couples from accessing federal benefits, and allows states to refuse to recognize the lawfully-performed same-sex marriages of another state.

“It would be thrilling beyond all means if they repealed DOMA,” says Jennifer Wagner, partner and family law attorney with the firm Marsh, Wagner and Winters of Middlebury. Given President Barack Obama’s campaign promise for a full repeal of DOMA and extension of those 1100-plus federal rights and benefits to same-sex couples, and a strong sense of optimism in some quarters that the Vermont Legislature may pass same-sex marriage legislation this year, that thrill might be just over the next hill.

The Defense of Marriage Act

DOMA has two simple provisions through which the federal government considers same-sex couples to be different from their heterosexual counterparts. The first says that no state need treat a relationship between persons of the same-sex as a marriage even if it’s considered marriage in another state. The second part prohibits the Federal Government from treating same-sex relationships as marriages for any purpose even if lawfully concluded or recognized by one of the states.

Repeal of this second provision would open up all those federal benefits to all legally married couples. “If DOMA were repealed, there would be an immediate effect for those couples who are able to get married, but it’s unclear whether there would be any impact for people in civil unions,” points out Vermont Law School associate professor Jackie Gardina. “All those federal benefits would be available to married couples, like social security benefits, tax benefits, and veteran’s benefits. The military families of gays and lesbians would still be invisible even if the Don’t Ask Don’t Tell policy is repealed. Unless DOMA is also repealed, they still won’t be eligible for military housing and other basic veteran’s benefits.”

The impact of repealing the first provision, however, is less clear. “That would mean other states would have to recognize civil unions and marriages,” according to Wagner. But how that recognition of civil unions would play out is questionable. “I would advise my Vermont clients to get a civil union here, in order to take advantage of the legal status offered in their own state, and then go get married in Connecticut,” she adds. “Right now, a civil union is different than a marriage so there is no restriction on getting a civil union here then getting married in another state. So get a civil union here, then go to Connecticut and get married, then come back to Vermont and apply for some federal benefits and see what happens.”

Even if DOMA is repealed in short order, “unless Vermont has ended discrimination in our own marriage laws it isn’t necessarily going to help couples overcome those obstacles,” Robinson cautions.

Other legal experts are less confident that a repeal of DOMA would immediately lead to the inter-state recognition of same-sex marriages. “Before DOMA, many states refused to recognize marriages from other states that were unlawful in their own state, such as underage marriages or miscegenation,” Gardina notes.

The legal controversy pivots on the Full Faith and Credit Clause of the U.S. Constitution, which says, in a nutshell, that all states have to recognize the legal and public acts of all other states. The clause was specifically expanded by statute twice – once to ensure the recognition by all states of any state’s domestic violence restraining orders in the Violence Against Women Act, and then to ensure that child support orders are fully enforceable in all states. Then came DOMA, the first and only time that Congress specifically passed a statute that appears on its face to curtail and infringe upon the Full Faith and Credit Clause.

State Experimentation

It’s popular to blame former President George W. Bush for many things, but he is not responsible for the Defense of Marriage Act. The statute was passed in September 1996 and signed into law by President Bill Clinton. Nor can one strictly speaking blame the Republican Party, because the law was passed by overwhelming margins (85-14 in the Senate, 342-67 in the House) which far exceeded party lines. In fact, it’s perhaps difficult to even pin the blame on the bill’s sponsor, then-Republican Bob Barr of Georgia, because he’s now a Libertarian and has publicly apologized for having sponsored it.

At the time, 12 years ago, the federal government anticipated that at least one state would soon pass a gay marriage statute authorizing same-gender couples the right to wed. The federal government was, collectively, disinclined to extend the thousand-plus federal legal benefits of marriage to same-gender couples immediately, no matter what a few progressive states might think.

Waiting to see how things work out in a few states before making sweeping federal changes is a time-honored governmental strategy. Justice Louis D. Brandeis famously wrote in 1932 – in a case regarding Oklahoma ice manufacturing licensing – “It is one of the happy incidents of the federal system, that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”

This reference to states as laboratories of democracy has been quoted in dozens of legal cases and thousands of commentaries since. As Michel Greve, a public interest lawyer and constitutional law scholar, noted in a journal of the American Enterprise Institute, “Much can be said for the piecemeal diffusion of new policies: when we do not know what we are doing, it is best not to do it everywhere, all at once. A state-based process facilitates gradualism and, therefore, feedback and institutional learning.”

Gay marriage is definitely not being done everywhere all at once; in fact, it’s highly confusing what the current status is in the various states. Currently, Connecticut and Massachusetts permit legal marriage of same gender couples. Vermont, New Jersey, and New Hampshire permit civil unions of same gender couples. Six states – New Mexico, New York, Rhode Island, Wyoming, Delaware, and Maryland – do not have state constitutional amendments or specifically state defense of marriage statutes. That leaves 39 states with some combination of a state version of DOMA or state constitutional amendment regarding marriage.

However, some states with amendments regarding definitions of marriage also do allow a legal form of domestic partnership which conveys some portion of state-law benefits to same-sex couples. And some states without prohibitory laws, such as New York, have highest state court rulings saying that defining marriage as one-man-one-woman is lawfully constitutional. Connecticut presently has both civil unions and same-sex marriages, though they are likely to clean up that legislation this session. It is safe to say that the condition of state experimentation currently runs the spectrum from outright prohibition of same-sex marriage to outright protection of it, and everything in between.

Same-Sex Marriage in Vermont

Same-sex marriage advocates in Vermont say our state should not rely on the excitement of potential federal action. Wagner notes a pending suit, Martinez v. County of Monroe Community College involving a married lesbian couple from Canada who moved to New York when one of the women was hired at a college. She had applied for benefits for her spouse and was denied. The courts ruled in favor of the couple, noting that state laws required the recognition of gay marriages that were legally entered into under the laws of where they were married. “It’s critical for Vermont to move forward with gay marriage and not wait for the people in D.C. to decide what to do, because at least some other states do recognize same-gender marriages even if DOMA is still around,” Wagner notes.

Portability is a key legal benefit that would be enhanced if Vermont acknowledges same-gender marriage. “There is a New York court decision declining to recognize Vermont civil unions, but three New York court cases recognizing same-sex married couples,” explains attorney Beth Robinson of the firm Langrock, Sperry and Wool in Middlebury. “So there’s an example of a bordering state where same-sex Vermont couples who are legally married will be respected and protected in New York.”

Robinson, who is chair of the Vermont Freedom to Marry Task Force and was co-counsel for the plaintiffs in the case that resulted in Vermont’s present civil union laws, agrees that Vermont cannot wait for a federal DOMA repeal. “In the area of gay civil rights issues, the passage of ENDA (the federal Employment Nondiscrimination Act), repeal of Don’t Ask Don’t Tell, and passage of the federal hate crimes legislation may be ahead in line of the repeal of DOMA,” Robinson says. “We don’t think DOMA’s about to go away immediately, but it will sometime, and how it looks when it goes away or whether it goes further and creates affirmative benefits remains to be seen. Times have changed a lot on this issue since 1996, but it’s not something that’s going to happen right away.”

To Robinson, passing a Vermont same-sex marriage law this term has taken on heightened importance in the wake of California’s passage of Proposition 8, which retracted that state’s prior recognition of same-sex marriage. “The road to undoing Prop 8 runs through Vermont,” she says. “One of the important motivators here is it’s not about Vermont anymore, it’s about a broader civil rights issue. When you’re talking about a civil rights movement, a win anywhere is a win everywhere, and a loss anywhere is a loss everywhere. The reason California sticks out in anyone’s mind is that it was not only failure to obtain a civil right, but to have it and lose it, was something that I’ve never seen… I think it really shocked a lot of people to see that civil rights, even after they are won, can still vanish.”

But the legal issues are “only a small but important part of the debate here,” Robinson says. “When laws explicitly denigrate same-sex relationships and say they are not quite worthy or good enough, that sends a powerful message that effects every person in our society in the way we view ourselves and the way we treat each other.”

The societal view of marriage has both emotional and practical effects as well. “For a lot of people the idea behind civil unions was, we were going to deliver the benefits of marriage but call it something different. But being married means so much, it’s an oxymoron to say it’ll be like marriage but called something else, because no new term will have the capacity to convey meaning between committed partners that the term marriage does. And if I’m in an emergency room in Montana with my partner, that doctor will understand what marriage is, but I don’t want to have to stand there and educate the doctors as to what a civil union is.”

Why expand the definition of marriage? “I like to flip the question,” says Robinson. “Why is it that you need to separate gay people? What is it that you need to make sure we don’t get?”

Vermont’s gay and lesbian youth ask the same question, says Chris Neff, executive director of Outright Vermont, a statewide organization providing education and outreach services to Vermont’s GLBT population under age 22.“Our youth ask, Why should we have to leave the state to be who we are, to love who we love? For them, it’s not so much about marriage as it is just being treated differently. You already feel different enough, especially in rural communities, then you have the state telling you that you are different,” Neff says.

Marriage Laws and Local Tragedies

Wagner sees economic hard times as heightening the necessity for legal protections of same-gender Vermont couples. “I see the present federal restrictions most affecting couples who have fallen onto hard times. [For example] the breadwinner is on disability and then passes away; their same gender partner cannot access social security [benefits, such as SSD (Social Security Disability Insurance) or SSI (Supplemental Security Income)]. All that money that the breadwinning partner socked away and worked for over the years cannot be accessed to help the partner and children,” she says.

Robinson, too, has seen many of the same legal tragedies in her practice. She relates the example of one woman who, with her civil union partner, were raising a child together. “The non-biological mom was killed in car accident. We wound up having to fight for social security benefits for [their child]; but the surviving spouse wasn’t able to access any benefits. People think that’s because of federal laws, but if DOMA were repealed tomorrow these couples would be in the same position – because in Vermont they don’t permit us to marry.”

Hope is currently the popular watchword, but Vermonters need not sit back and wait to create their own hopeful future. “Vermont has a history of showing the way on civil rights issues, but now we are in danger of falling behind as the states around us consider marriage laws,” Neff says. “What better way to inspire hope for tomorrow than to get married?

Cindy Hill writes and practices law from her home in Middlebury.